water

Samir responds to the The Hindu “Who governs the high sea?”

by Samir Saran
July 2nd 2012, New Delhi
Please find here the original link to the article.
Please find here the original link to the article, Samir responded to.

At the outset it is misplaced to suggest the original opinion in any way lauded the use of firearms or the actions of the Italian Marines. It expresses apprehension that such incidents are likely to recur as armed response to threats on the high seas is seen as a viable one.

The reference to SUA is entirely misplaced. SUA was enacted pursuant to a U.N. Convention to contain acts of terrorism. The application of SUA requires sanction of the Union government. The Kerala government has for this reason made a statement in the Kerala High Court that it will withdraw the charges of SUA against the Marines.

However, one fact may clear the air further and that is the reality that St. Antony (the vessel from Kerala) is a fishing vessel and Enrica Lexie is a merchant vessel with Military Vessel Protection Detachments deployed to protect against piracy in accordance with U.N. Conventions and other laws.

“Incidents of navigation”, should not be misread as the term is interpreted in accordance with the scheme of UNCLOS, especially Article 94(7) which describes various “incidents of navigation” and includes within its fold instances such as the present one. While Article 97 applies to the High seas, Article 58(2) of UNCLOS pertaining to the EEZ specifically incorporates and extends Article 97 and others to the EEZ.

The flag state jurisdiction under UNCLOS is based on the floating territory principle viz., a ship under the flag of a state is under the protection of that state and is subject to the laws of that state. The Indian Merchant Shipping Act excludes fishing vessels from flying the Indian flag. St. Antony is not registered under the Merchant Shipping Act and was not flying the Indian flag. St. Anthony in fact is registered as a mechanised fishing boat and was authorised to ply only within Indian territorial waters, i.e. within 12 nautical miles. Thus the fact that the incident occurred outside Indian territorial waters is not in dispute. Thus there is absolutely no dispute about the jurisdiction of the flag state.

The reliance on the Lotus case is erroneous. The evolution of international law after the 1927 Lotus case has eluded the authors and UNCLOS, 1982 specifically derogated from the principles laid down in the Lotus case and gives exclusive jurisdiction to the flag state (Italy).

Italy is on thin ground on the high seas

Please find here the original link to the article.

Samir Saran and Samya Chatterjee have argued in their article “Who governs the high seas?” (June 26) that India is wrong in prosecuting the two Italian marines aboard the tanker Enrica Lexie for shooting two Indian fishermen. Italy’s contention — which Saran and Chatterjee have echoed — is that Enrica Lexie was under its flag. Hence, in accordance with the U.N. Convention of Law of Seas (UNCLOS), Italy should try the two marines. India’s position is that St. Anthony, the fishing vessel aboard which the two fishermen were killed, was an Indian vessel; and under Indian law and the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention), India has jurisdiction. India and Italy are signatories to both these conventions. But while Italy needs to show exclusive jurisdiction, India only needs to show that it also has jurisdiction.

Saran and Chatterjee do not discuss a larger question that provides a context to this case. This is the issue of Somali piracy and the danger of putting armed guards on board merchant vessels. In their view, the Italian marines were doing something laudable — controlling Somali piracy. What they overlook is the complaint of Somali fishermen that trigger-happy armed guards have been preventing them from fishing.

The collapse of the Somalian state meant that it was no longer able to protect its waters. To a great extent, the present problem of piracy has its origins in the complete collapse of the fishing industry. This collapse can be clearly linked to illegal fishing in Somali waters by foreign fleets and the dumping of toxic wastes.

For the rest of the world, the collapse gained importance only because the consequence — Somali piracy — threatens the trillion-dollar maritime industry. International piracy caused an estimated loss of about $7 billion in 2011 globally. As against this, the total annual illegal fishing losses worldwide is between $10 billion and $23.5 billion. This is the other “piracy” to which the international community is turning a blind eye.

The trial question

In the Enrica Lexie imbroglio, the controversy is not about the facts of the case, but about the question of who has the right to try the two Italian marines. The Italian side — which Saran and Chatterjee endorse — has invoked UNCLOS to assert its jurisdiction. Article 97 of UNCLOS, which Saran and Chatterjee quote, refers to a “collision or incident arising out of navigation” on the “high seas”. The shooting of Indian fishermen was not a collision; nor was it an incident arising out of navigation. It also did not take place on the high seas. At best it took place in India’s economic zone, which under UNCLOS is not defined as “high seas”. Italy is on thin ground here. Even if UNCLOS were applicable, the question of which is the flag state under UNCLOS remains. This requires a legal examination of where the “incident” occurred — on the Enrica Lexie or on the St. Anthony.

A case similar to the Enrica Lexie one was previously adjudicated by the Permanent Court of International Justice in 1927. In this case, a French steamer, the Lotus, collided with a Turkish vessel, the Boz-Kourt, on the high seas, killing eight of her crew and passengers. Upon the French vessel’s arrival in Istanbul, the French crew was tried by the Turkish authorities. France adopted arguments similar to those used by Italy in the present matter.

Holding against the French, the court, inter alia, observed that:

“What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent” (Emphases added).

India has also claimed its jurisdiction under the SUA Convention. Dennis Hollis, who writes a well-known legal blog Opinio Juris, writes that under Article 6 read with 3 of SUA, India can claim jurisdiction — an opinion also endorsed by a number of experts in international maritime law.

What remains of Saran and Chatterjee’s argument is that the Italian marines are in the service of the Italian state and so have “sovereign immunity”. If we accept that Indian courts have jurisdiction over the matter, then we should leave it to the courts to decide on this claim.

Prabir Purkayastha is with the Delhi Science Forum. Rishab Bailey is a lawyer.

Re-imagining the Indus: Mapping Media Reportage in India and Pakistan

Published 2012, Observer Research Foundation, New Delhi

Overview
Water shortage has become a subject of intense public debate in the present political narrative on resource management and riparian rights. In an attempt to discern the divergence on core issues and mainstream media reporting, Re-imagining the Indus is a methodological study based on Media Content Analysis of the reporting on water issues related to the Indus, in the leading dailies of both India and Pakistan. This monograph seeks to capture the existing discourse and stimulate policy dialogue on the subject.

In Detail
What is the general discourse on water scarcity and related crises in the Indian and Pakistani media? The study conducted by Samir Saran (ORF) and Hans Rasmussen Theting, scrutinised the media coverage on water on three specific themes – the political discourse, water governance and people, practice and environment.

Titled ‘Reimagining the INDUS: Mapping media reportage in India and Pakistan’, the study found that the Indus Water Treaty (IWT) does not dominate the reportage in Pakistan, indicating a low level of discontentment or critique.

It also found that it is only in the months of winter, when the water flow is low, that inter-country dispute between India and Pakistan, and significant negative sentiment against India, gets attention in Pakistan. But in the Indian media, Pakistan only appears during spring months.

The study, now published in the form of a book, found that agricultural concerns and inter-provincial disputes dominate media reportage in Pakistan while in India media lays greater emphasis on urban water concerns and interventions, including ground water and domestic consumption.

The study also showed that media reports in both the countries, Pakistan more than India, recognise the need for the two countries to cooperate on water issues. From the study, it was also clear that in both India and Pakistan, there is equal emphasis on the aspects of water governance and infrastructure.

Human Security Report Project features ORF report on ‘Water Security in South Asia’

May 20, 2011
Linkto original websiteThis brief is largely based on several discussions organised at Observer Research Foundation over a period of time. These discussions were enriched by the presence of some of the well-known experts on water issues in the country, like former Union Minister for Water Resources, Dr. Suresh Prabhu, current High Commissioner of Bangladesh, Tariq Ahmad Karim, Mr. Sunjoy Joshi, Director, Observer Research Foundation, Ms. Clare Shakya, Senior Regional Climate Change and Water Adviser, DFID*, India, Mr. Samir Saran, Vice President, ORF and Dr. Dinesh Kumar, Executive Director, Institute for Resource Analysis and Policy, Hyderabad.

It is estimated that by 2030, only 60 per cent of the world’s population will have access to fresh water 1 supplies . This would mean that about 40 per cent of the world population or about 3 billion-people would be without a reliable source of water and most of them would live in impoverished, conflictprone and water-stressed areas like South Asia.

Water is already an extremely contentious, and volatile, issue in South Asia. There are more people in the region than ever before and their dependence on water for various needs continues to multiply by leaps and bounds. The quantum of water available, for the present as well as future, has reduced dramatically, particularly in the last half-acentury. This is due to water-fertiliser intensive farming, overexploitation of groundwater for drinking, industrial and agricultural purposes, large scale contamination of water sources, total inertia in controlling and channelising waste water, indifferent approach to water conservation programmes and populist policies on water consumption. SOURCE: Observer Research Foundation

Human Security Gateway features ORF’s report on water security in South Asia, 2011

May 2011
Link to original website
Feature on Feedblitz

Type : Report
Title : Water Security in South Asia: Issues and Policy Recommendations
Source : Observer Research Foundation
Date Added: 20-May-2011
Publication Date : 28-Feb-2011
URL : http://www.humansecuritygateway.com/documents/ORF-Water-Security-in-South-Asia.pdf
Abstract : This brief is largely based on several discussions organised at Observer Research Foundation over a period of time. These discussions were enriched by the presence of some of the well-known experts on water issues in the country, like former Union Minister for Water Resources, Dr. Suresh Prabhu, current High Commissioner of Bangladesh, Tariq Ahmad Karim, Mr. Sunjoy Joshi, Director, Observer Research Foundation, Ms. Clare Shakya, Senior Regional Climate Change and Water Adviser, DFID*, India, Mr. Samir Saran, Vice President, ORF and Dr. Dinesh Kumar, Executive Director, Institute for Resource Analysis and Policy, Hyderabad.It is estimated that by 2030, only 60 per cent of the world’s population will have access to fresh water 1 supplies . This would mean that about 40 per cent of the world population or about 3 billion-people would be without a reliable source of water and most of them would live in impoverished, conflictprone and water-stressed areas like South Asia.

Water is already an extremely contentious, and volatile, issue in South Asia. There are more people in the region than ever before and their dependence on water for various needs continues to multiply by leaps and bounds. The quantum of water available, for the present as well as future, has reduced dramatically, particularly in the last half-acentury. This is due to water-fertiliser intensive farming, overexploitation of groundwater for drinking, industrial and agricultural purposes, large scale contamination of water sources, total inertia in controlling and channelising waste water, indifferent approach to water conservation programmes and populist policies on water consumption.

Bangladesh Online Research Network report on ORF’s water security report, 2011

Bangladesh, 2011
Link to original website

Water Security in South Asia: Issues and Policy Recommendations
This brief is largely based on several discussions organised at Observer Research Foundation over a period of time. These discussions were enriched by the presence of some of the well-known experts on water issues in the country, like former Union Minister for Water Resources, Dr. Suresh Prabhu, current High Commissioner of Bangladesh, Tariq Ahmad Karim, Mr. Sunjoy Joshi, Director, Observer Research Foundation, Ms. Clare Shakya, Senior Regional Climate Change and Water Adviser, DFID*, India, Mr. Samir Saran, Vice President, ORF and Dr. Dinesh Kumar, Executive Director, Institute for Resource Analysis and Policy, Hyderabad.

It is estimated that by 2030, only 60 per cent of the world’s population will have access to fresh water 1 supplies . This would mean that about 40 per cent of the world population or about 3 billion-people would be without a reliable source of water and most of them would live in impoverished, conflictprone and water-stressed areas like South Asia.

Water is already an extremely contentious, and volatile, issue in South Asia. There are more people in the region than ever before and their dependence on water for various needs continues to multiply by leaps and bounds. The quantum of water available, for the present as well as future, has reduced dramatically, particularly in the last half-acentury. This is due to water-fertiliser intensive farming, overexploitation of groundwater for drinking, industrial and agricultural purposes, large scale contamination of water sources, total inertia in controlling and channelising waste water, indifferent approach to water conservation programmes and populist policies on water consumption. SOURCE: Observer Research Foundation